Clyburn defends Title II net neutrality

FCC commissioner Mignon Clyburn defended agency Chairman Julius Genachowski’s proposal to reclassify broadband Internet under Title II of the Communications Act during a speech at the Media Institute luncheon held yesterday.

Her remarks come amid mounting political opposition to the plan from Democrat and Republican lawmakers in the House of Representatives.

Clyburn called Genachowski’s proposal, which would forbear from implementing many of Title II’s regulations, “the most efficient and least burdensome way to expeditiously address some of the most pressing challenges in the telecommunications sector today” in the wake of the FCC’s court loss in the Comcast decision.

Clyburn went on to address widespread industry concerns that the chairman’s plan creates regulatory uncertainty in the marketplace, which can have a chilling effect on investment.

“At the outset, I feel compelled to point out the obvious, which is that there is no such thing as 'certainty' in the regulatory context. Beyond constitutional constraints, certainty is just not a reality under any regulatory framework,” she said.

Moving on to compare Genachowski’s proposal with Title I, Clyburn said she “simply cannot see how Title I offers any greater predictability than Title II.”

“Under the chairman’s proposal, we have both a clean process and, at worst, a colorable and straightforward argument in the courts,” she said. “The process would result in a reclassification of broadband connectivity to a telecommunications service – with a strong side of forbearance – and thus allows us to implement key features of our broadband plan.”

Clyburn also lashed out at AT&T, Verizon Wireless and T-Mobile for their critiques of Genachowski’s so-called “third way” plan. “How is it that, on the one hand, these companies can praise the regulatory regime governing wireless, and on the other hand sound the alarm of 'uncertainty' for a nearly identical framework proposed for broadband connectivity? The level of uncertainty should be, at worst, equal,” she said.

Clyburn’s remarks come two days after Sen. Olympia Snowe (R-Me.), a long-time net neutrality supporter, sent Genachowski a letter expressing concerns over the long-term implications of his proposal.

Snowe cited the potential regulatory uncertainty that could result from the FCC’s reclassification, since nothing in Genachowski’s proposal precludes the agency from retracting its promise to forbear from heavier regulation.

“While your proposal is well intended, it has significant drawbacks,” she said. “Title II includes numerous prescriptive regulatory obligations – close to 50 different sections – many of which were established in 1934 and do not properly capture technological advancements. While the statute allows the FCC to forbear from enforcing certain provisions, the action’s tactical nature presents a notable level of uncertainty that could hamper or delay investment in much-needed broadband infrastructure.”

Clyburn addressed the issue of “unforbearance” in her speech, saying that the FCC has never reversed a forbearance decision in the 17 years since its policy of forbearance has been in effect.